Tribune De Lyon 2021 Legal Guide: "Merger By Acquisition Transactions: What Is The Impact Of The Recent Decision On The Transfer Of Criminal Liability?"
Published date | 25 June 2021 |
Subject Matter | Corporate/Commercial Law, Criminal Law, M&A/Private Equity, Corporate and Company Law, Crime |
Law Firm | Soulier Avocats |
Author | Ms Catherine Nommick |
The 2021 Legal Guide published by Tribune de Lyon offers precise and pragmatic answers to concrete issues faced by business owners/managers.
Catherine Nommick contributed to this Guide through an article entitled "Merger by acquisition transactions: What is the impact of the recent decision on the transfer of criminal liability?".
This article is reproduced below and a courtesy English translation follows.
"Merger by acquisition" transactions: What is the impact of the recent decision on the transfer of criminal liability?1
Catherine Nommick, Partner, Soulier Avocats
Since a decision issued on November 25, 2020 by the Criminal Chamber of the Cour de Cassation (French Supreme Court), in a "merger by acquisition" transaction (i.e., when a company is merged into another), the acquiring company may now be held criminally liable for an offence committed by the acquired company prior to the merger.
This decision undermines the principle of the personal nature of offences and penalties set out in Article 121-1 of the French Criminal Code, on the basis of which the Cour de Cassation, which until then had equated the disappearance of a legal entity with the death of a natural person, refused that the acquiring entity be held criminally liable.
Relying on a decision handed down on October 24, 2019 by the European Court of Human Rights, the French judge drew the consequences of the economic continuity that exists...
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